Special judge steps down in fired Cathedral teacher case

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Asserting the Archdiocese of Indianapolis made claims that are “irrelevant, inaccurate, misleading or make incorrect inferences,” the Marion Superior Court denied the church’s attempt to remove the special judge appointed to preside over the case involving the firing of a gay teacher at Cathedral High School. The judge did step aside, however, citing personal reasons.

The order denying the archdiocese’s motion for recusal of the special judge was issued Friday by Bartholomew Circuit Senior Judge Stephen Heimann in Joshua Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc., 49D01-1907-PL-027728. However, while the court blocked the archdiocese, it entered Heimann’s order voluntarily recusing himself for family reasons.

In recusing himself, Heimann provided an extraordinarily detailed account of the personal issues that are demanding significant amounts of his time. He explained the inclusion of personal matters was not something he would normally have done, but he wanted to counter the claims made in the archdiocese’s verified motion for recusal of the special judge.

“That Motion is critical of the Special Judge’s work in this case and contains direct assertions and insinuations that the Special Judge has violated Judicial Rules and is biased and prejudiced,” Heimann wrote in his order. “Therefore, if the Special Judge simply ‘voluntarily recuses’ with general statement that he is overwhelmed with personal matters, it could be inferred that he is actually doing so because of the claims made in the Motion For Recusal.”

Payne-Elliott sued the Archdiocese after he was fired from Cathedral High School for being married to a man. After multiple unsuccessful attempts at getting the case dismissed, the archdiocese filed a verified petition for writ of mandamus and writ of prohibition with the Indiana Supreme Court in mid-August. The archdiocese argued First Amendment protections of religious liberty prohibit the civil court from having authority over church matters.

The archdiocese also filed the motion for Heimann’s recusal.

In the order denying the motion to recuse, Heimann countered what he described as the archdiocese’s “broad assertions indicating that the Special Judge is biased or prejudiced against it.”

Heimann claimed the archdiocese misrepresented his relationship with Raymond Shafer, an openly gay priest who 30 years ago was an associate pastor at the judge’s home parish. The judge pushed back against the assertion that he failed to disclose he had a “social or pastoral relationship” with a priest affected by the archdiocese’s employment practices related to sexual conduct and morality.

“The Special Judge did not have social relationship With Fr. Shafer in that they did not socialize together,” Heimann’s order denying the recusal motion stated. “The Special Judge knew Fr. Shafer personally because they sometimes worked on committee or parish board together or the Special Judge was Lector at Masses Fr. Shafer presided over. In fact, as far as the Special Judge knows, he has not had social relationship or pastoral relationship with any priest, at the time of or after, the priest had been affected by the archdiocese’s policies on sexual matters.”

He also countered claims that he had ex parte discussions with the parties during a settlement conference in October 2019 and that he “attempted to coerce” the archdiocese into settling the case. Heimann’s order stated the archdiocese had initially agreed to a settlement he had proposed but then, a short time later, changed its mind. Archbishop Charles Thompson did not attend the conference but Gina Fleming, superintendent of Catholic Schools, told the court she had the authority to act on his behalf. However, in backing out of the deal, the attorneys said they had called Thompson and he told them to not accept it.

Heimann responded by telling counsel he wanted Thompson to appear or the archdiocese would be held in contempt. The archdiocese’s attorney said the judge was using his “authority to bully.”

“Perhaps Mr. Mercer found it bullying when told that the Special Judge wanted the person with the authority to resolve the case there by 1:00 (p.m.) or their client would … be found in contempt,” Heimann wrote. “This was not bullying. It was a legitimate attempt to get the person there who had been ordered to be present in person — the person who had the authority to resolve the case to actually be there.”

The attorneys then told Heimann the archbishop could not appear because he was attending a conference in New Mexico.

“So, it immediately became clear that the archbishop could not be there that day,” Heimann wrote. “The Special Judge then apologized for being short with them and for the frustration that was clearly apparent in his voice and facial expressions. But it should be noted that if the Special Judge had actually been bullying them, he would not have apologized because his frustration had become obvious.”

With Heimann’s voluntary recusal, the parties now have seven days to agree upon another special judge. If they fail to do so, the clerk of Marion County will contact the eligible judges until a replacement is found.

In his motion of voluntary recusal, Heimann recommended the parties try to secure a senior judge who had served on the appellate bench.

Joshua Payne-Elliott is represented by Kathleen DeLaney and Christopher Stake of DeLaney & DeLaney in Indianapolis. The archdiocese is represented by John Mercer of Fitzwater Mercer in Indianapolis and Luke Goodrich, Christopher Pagliarella of the Becket Fund for Religious Liberty in Washington, D.C.

The archdiocese’s petition for writ of mandamus is presently pending before the Indiana Supreme Court, where earlier this week, lay Catholics, law professors and others filed numerous friend-of-the-court briefs in support of Payne-Elliott.

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